New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-005-514, Claim No. 106627, Motion No. M-66548


Synopsis


Claimant's motion for reargument of an earlier motion is denied.

Case Information

UID:
2003-005-514
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106627
Motion number(s):
M-66548
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Johnathan Johnson,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 13, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On April 16, 2003, the following papers, numbered 1 to 5, were read on motion by Claimant for reargument of an earlier motion:

1, 2 Notice of Motion, Affidavit and Exhibits Annexed
  1. Letter from Defendant dated April 2, 2003
4, 5 Filed Papers: Notice of Appeal, Decision and Order in Motion No. M-65873

Upon the foregoing papers, this motion is denied.

Claimant seeks to reargue my decision and order in Motion No. M-65873, dated February 14, 2003, pursuant to CPLR 2221(d). Prior to addressing the merits of Claimant's motion to reargue which was filed with the Clerk of the Court on March 19, 2003, I note that the Clerk of the Court sent a letter dated March 20, 2003 to the Claimant and the Defendant, advising both parties that the motion was returnable on April 16, 2003. In response thereto, Defendant sent a letter to the Court, the Claimant and the Clerk dated April 2, 2003, advising that as of that date the Defendant had not been served with any motion papers and thus could not respond to the motion. The Defendant also noted that the claim has been dismissed by my prior order, and that as of that date, no Notice of Appeal had been served upon the Defendant. The Court's file reflects that a Notice of Appeal has been filed with the Clerk on March 13, 2003.

I note that the Notice of Appeal dated March 3, 2003, contains an affidavit of service thereof, sworn to on March 3, 2003, alleging service on the Defendant on the 17th day of March 2003. Obviously something is amiss there in that the dates are confused and impossible to reconcile.

The motion papers herein are also dated March 3, 2003, with the supporting affidavit sworn to on March 3, 2003, and an affidavit of service sworn to on March 3, 2003, also asserting service of the motion upon the Defendant "by mailing it on March 17, 2003."

Thus both documents suffer from the discrepant dates of mailing, apparently occurring some two weeks after the date upon which the affidavits of service are sworn to. Furthermore, I note that the Defendant raised the failure to have received either the motion or the Notice of Appeal in its letter dated April 2, 2003, some four weeks after service was sworn to. As of this date, more than one month thereafter, the Claimant has not responded to the allegations of non-service of the aforesaid documents. Accordingly, given the discrepancy in the dates of alleged mailing of the said documents, and Defendant's unrefuted assertions that it has not been served with either document,[1] despite the affidavits of service coupled with Claimant's silence with respect thereto, the Claimant's motion to reargue is denied because I find that the Defendant has not been given notice of the instant motion and cannot respond to it.


May 13, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




  1. [1]Of course, for the proceeding herein, I am only concerned with the motion papers, not the Notice of Appeal.